DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 02/09/2026 has been entered.
Application Status
Claims 26-28, 31-38, 40-42, 44-47 and 49-57 are pending.
Claims 27-28, 36, 41-42, 47 and 50-51 remain withdrawn.
Claim Interpretation
During patent examination, the pending claims must be “given their broadest reasonable interpretation consistent with the specification.” [MPEP 2111]. The claim limitations in at least claim 26, “at least one amino acid, their polymer, salts or derivatives or mixtures thereof” is interpreted to include the materials as further defined in Applicant’s Specification: “one or more of essential, non-essential amino acids, non-proteogenic amino acids, oligomers, homopolymers, random co-polymers of amino acids, peptides, plant and animal proteins, hydrolysed proteins, polyamino acids, salts or derivatives thereof or mixtures thereof” [Applicants Specification pg. 11, lines 22-26] wherein these materials include/are composed of/are mixtures of the one or more of the amino acids, amino acid polymers and/or protein hydrolysates recited in claim 26.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 26, 31-35, 37-38, 40, 44-46, 49, 52-57 are rejected under 35 U.S.C. 103 as being unpatentable over Pedersen (US Patent Publication No. 2012/0036906 – cited in 02/12/2024 IDS) in view of Cavazza et al. (US Patent No. 6,348,495 - cited in 11/10/2025 PTO-892).
In regard to claims 26 and 55-57, Pedersen discloses a water dispersible granular composition (e.g. dispersible fertilizer pellets) [0001] for soil application [0028] and while Pedersen does not describe their composition as “synergistic”, the discovery of a previously unappreciated property of a prior art composition does not render the old composition patentably new to the discoverer [MPEP 2112], the composition comprising:
elemental sulphur in a range of 20-99%w/w (e.g. 10% to 99.9%) [0020] of the total composition;
at least one amino acid mixture (e.g. plant storage protein binders including soy extract, zein, prolamine, collagen, casein and polymers of amino acids such as polylactic acid) present a range of 0.1-70% w/w (e.g. 0.05% to 50% by weight) of the total composition [0034], wherein prolamine is a known protein polypeptide composed of numerous proteins [Cavazza; col. 2, lines 7-10]. Prolamine has an high glutamine (one glutamine residue every three amino acids) and proline (a proline residue every seven amino acids) content [col. 2, lines 11-13]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that Pedersen’s prolamine binder component in the range of 0.05 to 50% by weight [0034] contains the amino acids selected from, at least, glutamine and proline as components of the prolamine protein (e.g. amino acid) within the claimed ranges; and
at least one agrochemically acceptable excipient (e.g. bentonite) in a concentration of 1%- 90%w/w (e.g. 0.05% to 50% by weight) of the total composition [0037], wherein the granules of the composition are in a size range of 0.1 - 5mm (e.g. the mean particle domain size ranges from 0.8 millimeter to 5 millimeters) [0052].
Pedersen discloses wherein the composition disperses in a few minutes into particles with more than 90% less than 50 mesh in size (e.g. 300µm) [0031]. While Pedersen does not explicitly describe a size range of from 0.1-20 microns, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention “to have a granular elemental sulphur containing fertilizer which has a high nutrient content and quickly disperses into finely divided particles, say for example sub 30 micron particles, once contacted with water on or in the soil” as explicitly described by Pedersen [0011]. One of ordinary skill in the art would have been motivated to do so because “the amount of sulphate produced per unit of time is a function of the total surface area of elemental sulphur present, not of its mass, hence the rate of oxidation is strongly influenced by sulphur particle size” [0008]. There is a reasonable expectation of success for the dispersion into particles having a size within the claimed range because the micronized elemental sulfur ingredient of the Pederson composition is most preferably 80% less than 20 micron in diameter. Even more preferably, the size of the micronized sulphur is 80% less than 10 micron in diameter. Most preferably, the size of the micronized sulphur is 80% less than 5 micron in diameter [0033]. Furthermore, where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists) [0024].
In regard to claims 31-33, Pedersen discloses the composition as claimed in claim 26, further comprises at least one water soluble micronutrient, their salts, derivatives or mixtures thereof (e.g. water soluble salt) present in the concentration of 0.1 %-70% by weight (e.g. 0.05% to 50% by weight) of the total composition, wherein the micronutrient is selected from zinc, iron, copper, boron, manganese, magnesium, silicone, cobalt, selenium, molybdenum, lithium, calcium, their salts, derivatives or mixtures thereof (e.g. calcium chloride, calcium sulfate, iron sulfate, magnesium chloride, magnesium sulphate) [0036].
In regard to claim 34, Pedersen discloses the water dispersible granular composition as claimed in claim 32 wherein the amino acid binder is present in the range of 0.05% to 50% by weight of the total composition [0034] and a water soluble micronutrient present in the range of 0.05% to 50% by weight [0036]. For the purposes of calculating a ratio, prolamine [0034] (e.g. proline average molecular weight 115.132) and calcium chloride [0034] (average molecular weight 110.98) are considered to be in a molar ratio of amino acids to the metal ions of water soluble micronutrient from 964:1 to 1:1038 when calculated at the endpoints which encompasses the claimed range.
In regard to claim 35, Pedersen discloses the water dispersible granular composition as claimed in claim 26, wherein the sulfur is present in a range 10% to 99.9% [0020] and the amino acid binder is present in the range of 0.05% to 50% by weight of the total composition [0034]. This is considered a ratio of sulfur to amino acid from 1998:1 to 1:5, when calculated at the endpoints.
In regard to claims 37-38, Pedersen discloses the composition as claimed in claim 26, further comprising at least one fertilizer (e.g. ammonium chloride or ammonium sulfate) [0036].
In regard to claim 40, Pedersen discloses the composition as claimed in claim 26, wherein the composition further comprises one or more agrochemically acceptable excipients selected from hydrophobic agents (e.g. bentonite) [0037].
In regard to claims 44-45, Pedersen discloses the composition as claimed in claim 26, wherein suspensibility/dispersibility of the composition is at least 30% (e.g. pellets disperse into particles with more than 90 % less than 50 mesh in size) [0031]
In regard to claim 46, Pedersen discloses the composition as claimed in claim 26, wherein wettability of the composition is less than 2 minutes (e.g. the pellets disperse within a few minutes) [0031].
In regard to claim 49, Pedersen discloses a process of preparation of the water dispersible granular agricultural composition as claimed in claim 26, wherein the process comprises:
a. milling a blend of elemental sulphur, at least one amino acid (e.g. binder), their salts, derivatives and at least one surfactant and agrochemical excipient (e.g. bentonite) to obtain a slurry or wet mix (e.g. water is added) [0038];
b. drying the wet mix to obtain the water dispersible granular composition (e.g. drying and mechanically aggregated into pellets using a pellet press) [0038-0039];
wherein the granules of the composition are in a size range of 0.1 - 5mm (e.g. the mean particle domain size ranges from 0.8 millimeter to 5 millimeters) [0052].
In regard to claim 52, Pederson discloses the process as claimed in claim 49, wherein the milling further comprises at least one micronutrient, their salts, derivatives or mixtures thereof (e.g. mixed with additives) [0046].
In regard to claim 53, Pedersen discloses the composition as claimed in claim 26, wherein the composition is a fertilizer composition (e.g. elemental sulfur fertilizer) [0001].
In regard to claim 54, Pedersen discloses a method of improving plant yield (e.g. sulfur fertilization increases crop yield) [0002], the said method comprising treating a surrounding soil with the granular composition as claimed in claim 26 [0028].
In regard to claim 57, Pedersen does not explicitly recite the claimed amino acids, polymers, salts or derivatives. However, the reference teaches the presence of prolamine which is a known protein polypeptide composed of numerous proteins [Cavazza; col. 2, lines 7-10]. Prolamine has an high glutamine (one glutamine residue every three amino acids) and proline (a proline residue every seven amino acids) content [col. 2, lines 11-13]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that Pedersen’s prolamine binder component in the range of 0.05 to 50% by weight [0034] contains the amino acids selected from glycine, proline and lysine as components of the prolamine protein within the claimed ranges.
Response to Arguments
Applicant argues (pg. 9, 1st full para.) Pedersen discloses prolamine as a composition to assist in binding sulfur particles and not to function as an active ingredient and there is no teaching or suggestions that a skilled person would select the protein binder, prolamine. In response to the argument that one of skill in the art would not select prolamine from a list of inert binders, the prior art’s explicit disclosure of the claimed component is considered to satisfy the requirement for an amino acid material. In response to applicant's argument that that the intended use of the amino acid component of the prior art differs from the intended use in Applicant’s invention, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). Prolamine is a known is a known amino-acid containing material. Prolamine has an high glutamine (one glutamine residue every three amino acids) and proline (a proline residue every seven amino acids) content [col. 2, lines 11-13].
Applicant argues (pg. 9, 2nd full para.) that while prolamine is composed of various amino acids, the amino acids only exist within a high-molecular -weight protein structure and there is no teaching or suggestion to isolate the amino acids from prolamine to achieve a synergistic effect. This argument is not persuasive. The claims are not limited to an isolated amino acid and instead recite at least one amino acid, their polymer, salts. The claim limitations in at least claim 26, “at least one amino acid, their polymer, salts or derivatives or mixtures thereof” is interpreted to include “one or more of essential, non-essential amino acids, non-proteogenic amino acids, oligomers, homopolymers, random co-polymers of amino acids, peptides, plant and animal proteins, hydrolysed proteins, polyamino acids, salts or derivatives thereof or mixtures thereof” [Applicants Specification pg. 11, lines 22-26]. Pedersen teaches plant storage protein binders including soy extract, zein, prolamine, collagen, casein. Prolamin is a known protein polypeptide composed of numerous proteins [Cavazza; col. 2, lines 7-10]. Prolamine has an high glutamine (one glutamine residue every three amino acids) and proline (a proline residue every seven amino acids) content [col. 2, lines 11-13]. Thus, the broadest reasonable interpretation of the claimed “amino acid […]” component consistent with the Specification is anticipated by Pedersen’s teaching of the plant protein prolamine.
Applicant argues (pg. 9, 2nd full para.) Pedersen does not teach a synergistic granular composition. This argument is not persuasive. First, while Pedersen does not describe their composition as “synergistic”, the discovery of a previously unappreciated property of a prior art composition does not render the old composition patentably new to the discoverer [MPEP 2112]. Second, Pedersen teaches a pellet composition which allows rapid oxidation of smaller sulfur particles into plant available sulphate for crop fertility needs and large particle which oxidize more slowly and provide sulfate throughout the growing season [0028]. The binder (e.g. protein binder) promotes cohesion of the micronized sulfur and thus, one of skill in the art would understand the synergistic achievement of micronized sulfur in a cohesive pellet rather than micronized sulfur and binder separately which would not provide the plant nutrient action of rapid oxidation and slower oxidation of the sulfur present in its pelletized form.
The declaration under 37 CFR 1.132 filed 02/09/2026 is insufficient to overcome the rejection of the claims based upon the Pedersen prior art as set forth in the last Office action because it refers only to the system described in the above referenced application and not to the individual claims of the application. Declarants' tests only compare glutamine and alanine-based granules applied to grain at 500-2500 g/acre. There is no basis in this data for predicting the relative performance of amino acids, their polymer, salts or derivatives or mixtures thereof wherein the amino acid is alanine, arginine, aspartic acid, asparagine, citrulline, leucine, isoleucine, cysteine, glutamic acid, glutamine, gaba-aminobutyric acid, histidine, methionine, ornithine, phenylalanine, serine, selenocysteine, valine, taurine, tyrosine, theanine, threonine, tryptophan, polyglutamic acid, soya protein hydrolysate, whey protein hydrolysate, fish protein hydrolysate, polylysine, polyornithine, polyarginine, polythreonine, polyproline, polyhistidine, polytyrosine, and protein hydrolysate. Declarant’s results illustrate grain yield utilizing one of two isolated amino acids (e.g. glutamine, alanine). Accordingly, the evidence of unexpected results is not commensurate in scope with the breath of the claims (e.g. 35 types of amino acids, their polymers, salts, derivatives, or mixtures thereof).
Applicant’s arguments (pgs. 11-15) with respect to claim rejection(s) based on the Bugiani reference have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
For these reasons Applicant's arguments filed 02/09/2026 have been fully considered but they are not persuasive.
Conclusion
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/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731 February 16, 2026